Matter of Perez

[*1] Matter of Perez 2013 NY Slip Op 51492(U) Decided on September 10, 2013 Sur Ct, Nassau County McCarty, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 10, 2013
Sur Ct, Nassau County

In the Matter of the Administration Proceeding, Estate of Luis S. Perez, Deceased.



2012-371736



Charles G. McQuair, Esq. (for petitioner)

325 Glen Cove Ave.

Sea Cliff, NY 11579

Luis G. Perez (pro se)

1946 So. Ocean Dr., Unit 2102

Hallandale Beach, FLA 33009

Cynthia Perez (pro se)

P.O. Box 137

Stamford, CT 06904

Edward McCarty, J.

In this contested proceeding for the issuance of letters of administration, the petitioner, the decedent's putative surviving spouse, moved to dismiss the objections filed by the decedent's daughters who alleged that a prior marriage of the decedent had never been terminated and thus the marriage between the decedent and the petitioner was invalid. By decision and order dated July 30, 2013 (Dec. No. 28941), this court held the motion in abeyance pending the submission by objectants of marriage documents in admissible form regarding the claim that the decedent had originally been married Chile in 1969, which marriage was allegedly never dissolved.

Objectants have now filed a marriage certificate and a separate document denominated "certificado de matrimonio," both emanating from the Chilean Civil Registry and Identification Services and which appear to be the originals of the photocopies that had been initially submitted by them. While in the prior decision herein the court had cautioned that just submitting these originals may not suffice for compliance with CPLR 4542, upon closer scrutiny of the documents and taking judicial notice of the definition of a key phrase on the face of each [*2]document leads to the conclusion that they are admissible.[FN1]

CPLR 4542, as is evident from the language of subdivisions (a) and (b) and the Practice Commentary by Professor Alexander, involves the two step process of an attestation by "a person authorized" and a "final certification" as to the signature of the person attesting and their official position. The statutory scheme is designed to foster simplification and flexibility in the admission of foreign records and documents. (Practice Commentary, McKinney's Cons. Laws of NY, Book 7B CPLR 4542, pp. 781-782).

Looking at the originals of the two documents in tandem, it is inescapable that Mr. Salas, the Chief of General Archives, is attesting to what Chilean marriage records show and the Counsul General, Mr. Zuniga, provides the final certification, if necessary at all under the last sentence of CPLR 4542(b). In that connection it should be noted that petitioner has not challenged the documents. Further, the court takes judicial notice of the translation /definition of the Spanish phrase "visto bueno" in the legal context here presented as "Judicial or administrative terminology used to certify a document" (Eleanor C. Hoague, Guillermo Cabanellas de las Cuevas, Diccionario Juridico, p. 814) (Becker v Becker, 207 Misc 17 [Sup Ct, Kings County 1954]; Prince, Richardson on Evidence, § 2-204 [f] 11th ed]).

Summary judgment may be granted only when it is clear that no triable issue of fact exists (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Phillips v Joseph Kantor & Co., 31 NY2d 307, 311 [1972]). The court's function on a motion for summary judgment is "issue finding" rather than issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), because issues of fact require a hearing for determination (Esteve v Abad, 271 App Div 725, 727 [1st Dept 1947]). Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Zarr v Riccio, 180 AD2d 734, 735 [2d Dept 1992]). If there is any doubt as to the existence of a triable issue, the motion must be denied (Hantz v Fishman, 155 AD2d 415, 416 [2d Dept 1989]).

If the moving party meets his or her burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In doing so, the party opposing the motion must lay bare his or her proof (see Towner v Towner, 225 AD2d 614, 615 [2d Dept 1996]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to overcome a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see Prudential Home Mtge. Co., Inc. v Cermele, 226 AD2d 357, 357-358 [2d Dept 1996]).

For the foregoing reasons, a material issue of fact has been raised as to whether petitioner is the wife of the decedent and thus the motion is denied.

This constitutes the decision and order of the court.

Dated: September 10, 2013 [*3]

EDWARD W. McCARTY III

Judge of the

Surrogate's Court Footnotes

Footnote 1:The phrase in question is "visto bueno" which while in the copies originally submitted appears clearly in bold in the marriage certificate, is so faint on the certificado de matrimonio that it is barely legible.